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Building on tougher line towards Romanians and Bulgarians
FT Weekend
04 March 2007
I run a construction company which is based in Birmingham and most of my workers are foreign. I’ve recently heard that only highly skilled Romanian and Bulgarian construction workers will be allowed to work in the UK construction industry. What exactly are the rules and what do I, as one of the directors, need to be aware of?
Although they became citizens of the EU on 1 January 2007, Britain has nonetheless opted to limit access to Romanian and Bulgarian workers except in the case of migrants who are highly qualified or can fill skills shortages. - a much tougher line than taken when eight eastern and central European states including Poland and Lithuania joined the EU in May 2004 and whose nationals are allowed to work freely in the UK.
You will need to apply to the Home Office for a ‘Letter of Approval’ for the employment of each individual Bulgarian or Romanian national, who in turn must apply for an ‘Accession Worker Card’. Only on receipt of the Accession Worker Card can the person legitimately commence work with you.
Once approved, Romanian or Bulgarian workers will then qualify for the same rights as any other foreign workers entitled to work in the UK, and like them can enforce those rights in the employment tribunals or the courts. These common rights include entitlement to the national minimum wage; minimum periods of daily rest/weekly rest breaks and annual leave, a maximum average weekly working time of 48 hours; and the right not to be discriminated against.
As an employer you have a statutory duty to avoid discrimination on grounds of race, sex, disability, age, sexual orientation, religion or belief in your recruitment and workplace practices. Race discrimination includes less favourable treatment on the grounds of colour or nationality (including citizenship and ethnic or national origin).
Any less favourable treatment based on racial or national stereotypes would constitute discrimination. For example, recent tabloid press, stirring up fears of a supposed "Gyspy crimewave" has unfortunately contributed to negative stereotyping of Romanians in the UK in some quarters. A further example might be comparisons with the supposedly sexist, racist, feudal peasant society of Kazakhstan depicted in the comedy film "Borat".
Even where apparently light-hearted, stereotyping as well as racial or nationalistic prejudices may affect the attitude of your workforce towards each other. You must therefore be careful to monitor behaviour, as employers may be vicariously liable for the discriminatory acts of their employees, whether or not the employer knows or approves of this. The same goes for bullying and harassment.
The Health and Safety Executive (HSE) describes construction as one of Britain’s most dangerous industries, with an average of 80 fatalities per year from injuries received at work. Recent research for the HSE found that migrant workers are at greater risk of workplace accidents because of concentration in more hazardous jobs without adequate training or working longer hours. Be aware that the HSE promise to step up inspections and enforcement in sectors 'where vulnerable workers are most likely to work’. As a director you can be held personally liable for breaches of Health and Safety regulations.
Deirdre Knox is an employment solicitor at law firm Russell Jones & Walker.